Keva Sampson v. ASC Industries
780 F.3d 679
| 5th Cir. | 2015Background
- Plaintiff Rebecca Breaux sued ASC Industries for age discrimination; suit filed May 6, 2012.
- Breaux died; her attorney Lurlia Oglesby filed a Rule 25(a)(3) suggestion of death with the court on May 24, 2013.
- The district court stayed the case pending substitution; no motion for substitution was filed within Rule 25’s 90-day period.
- ASC moved to dismiss under Rule 25 after the 90 days elapsed; the district court granted dismissal on September 3, 2013.
- Breaux’s estate (through executrix Keva Sampson and counsel Oglesby) later moved to alter the judgment and to substitute the estate’s representative; the district court denied relief, concluding the 90-day clock ran upon filing the suggestion of death.
- Sampson appealed, arguing that the 90-day period never began because the suggestion of death was not personally served on the estate under Rule 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 25’s 90-day substitution clock begins when a suggestion of death is filed with the court, or only after the suggestion is personally served on the decedent’s representative under Rule 4 | Breaux’s estate: filing the suggestion with the court (by decedent’s counsel) did not start the 90-day clock because the estate was not personally served | ASC: filing the suggestion by the deceased’s counsel (who had contact with the estate) sufficed; estate had notice so the 90-day clock ran | The court held the 90-day clock does not begin until the suggestion of death is personally served on the deceased-plaintiff’s representative in accordance with Rule 4 |
Key Cases Cited
- Barlow v. Ground, 39 F.3d 231 (9th Cir. 1994) (nonparty personal representatives must be served under Rule 4 for a suggestion of death)
- Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985) (personal service on the executor required; service protects nonparty from forfeiture)
- Grandbouche v. Lovell, 913 F.2d 835 (10th Cir. 1990) (service on decedent’s attorney does not substitute for service on representatives)
- Atkins v. City of Chicago, 547 F.3d 869 (7th Cir. 2008) (suggestion by counsel without Rule 4 service does not start the 90-day clock)
- Ransom v. Brennan, 437 F.2d 513 (5th Cir. 1971) (Rule 4 service required for motion to substitute; actual notice does not replace process)
- Ray v. Koester, [citation="85 F. App'x 983"] (5th Cir. 2004) (discussed but did not resolve the Rule 4 service question)